Deliu v Johnstone

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA70/2021
[2021] NZCA 488

BETWEEN	FRANCISC CATALIN DELIU Applicant
AND	DAVID JOHNSTONE, MARK HARBOROW AND NICK FLANAGAN First to Third Respondents THOM CLARK Fourth Respondent NEW ZEALAND POLICE Fifth Respondent MIKE BUSH, STEPHEN PEAT, GILLIAN HOLLAND, TONI JORDAN Sixth to Ninth Respondents

Court:	French and Cooper JJ
Counsel:	Applicant in person N F Flanagan for First to Third Respondents No appearance for Fourth to Ninth Respondents
Judgment: (On the papers)	24 September 2021 at 9 am

JUDGMENT OF THE COURT

AThe application for recall of this Court’s judgment of 26 July 2021 (Deliu v Johnstone [2021] NZCA 337) is declined.
BThe applicant must pay one set of costs to the first to third respondents for a standard application on a band A basis together with usual disbursements.

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REASONS OF THE COURT

(Given by French J)

On 26 July 2021 we delivered a judgment declining Mr Deliu’s application for leave to appeal a High Court decision ordering him to pay security for costs.[1]
[1]Deliu v Johnstone [2021] NZCA 337.
Mr Deliu has now applied for our judgment to be recalled. He has also requested that a new panel be convened to consider his recall application. He does so on the grounds that having issued the judgment which is now sought to be recalled we should not be judges in our own cause.
If that were a valid justification for recusal on a recall application, it would apply to almost all recall applications. Yet for good reasons the generally accepted practice is that the panel who issued the judgment should determine the recall application. We decline to recuse ourselves.
In support of his application for recall, Mr Deliu advances two grounds.
The first is that he was denied a fair process in the adjudication of his application for leave to appeal because it was heard on the papers without him consenting to that or being given an opportunity to be heard. However, s 49(7) of the Senior Courts Act 2016 mandates that an application for leave to appeal must be determined on the papers unless the Court otherwise directs.
The second ground is that the judgment failed to cite any legal authority or reference any evidence. Mr Deliu clearly disagrees with our assessment of the merits of his claim and is very dissatisfied with the outcome. But none of the authorities he cites persuades us to re-consider our view. In any event, a recall application is not an opportunity to re-litigate issues.
We are satisfied that the two grounds whether viewed individually or in combination do not qualify as operative reasons for recall and accordingly decline the application.[2]
[2]Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
The first to third respondents seek costs. There is no reason why costs should not be awarded in accordance with the well established principle that costs should follow the event. We accordingly order the applicant to pay one set of costs to the first to third respondents for a standard application on a band A basis together with usual disbursements.

Solicitors:
Meredith Connell, Auckland for First to Third Respondents

CaseChat Overview and Summary

The Court of Appeal of New Zealand delivered a decision in the matter of Deliu v Johnstone. Francisc Catalin Deliu, the applicant, sought recall of the Court’s earlier judgment declining his application for leave to appeal a High Court decision. The High Court decision had ordered Deliu to pay security for costs. The first to third respondents, David Johnstone, Mark Harborow, and Nick Flanagan, sought costs against Deliu. Deliu appeared in person and was represented by N F Flanagan, while the first to third respondents were represented by Meredith Connell. The Court of Appeal declined the application for recall and ordered Deliu to pay one set of costs to the first to third respondents.

The legal issues before the Court of Appeal were whether the initial judgment should be recalled and whether costs should be awarded to the respondents. The first issue pertained to Deliu's argument that he was denied a fair process in the adjudication of his application for leave to appeal, as it was heard on the papers without his consent or an opportunity to be heard. The second issue was whether the judgment failed to cite any legal authority or reference any evidence. The third issue was whether costs should be awarded to the first to third respondents under the principle that costs should follow the event.

The Court of Appeal found that the initial panel should determine the recall application, as it was the generally accepted practice. The Court dismissed Deliu’s grounds for recall, stating that s 49(7) of the Senior Courts Act 2016 mandates that an application for leave to appeal must be determined on the papers unless the Court otherwise directs. The Court also found that the judgment did not fail to cite any legal authority or reference any evidence, as it was not an opportunity to re-litigate issues. The Court concluded that the two grounds for recall did not qualify as operative reasons for recall and accordingly declined the application. The Court of Appeal ordered Deliu to pay one set of costs to the first to third respondents for a standard application on a band A basis together with usual disbursements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established